The two appellants, Mst. Alam Khatoon and Haq Nawaz were convicted under section 302/34, P. P.
C. With a sentence of transportation for life to each by the Sessions Judge, Sargodha, on 23rd February 1971, for committing the murder of Zahoor Ali (deceased), the husband of the former, in furtherance of their common intention on 28th July 1968, at peshiwela, inside his house at Chah Ghagan Dakbli, Ahdi Kot, situate at a distance of 19 miles from Police Station Nurpur, Sargodha. To question the correctness of this order the two appellants have preferred a joint appeal.
2. It was alleged that Mst. Alam Khatoon had contracted illicit relations with Haq Nawaz appellant and for the fulfilment of this amorous intrigue between them they conspired to remove Zahoor Ali (deceased) from their way by killing him.
3. The prosecution case as originally reported to the police station by Gohar Ali (P. W. 14) was that he was present in his house at peshiwela on the eventful day when he hear a report of gunshot from the nearby house of his son Zahoor Ali and rushing in he found him lying injured in the cot with his wife, Mst. Alam Khatoon standing near him with gun (P. In her hand, who on enquiry told him that Haq Nawaz had counselled her to murder Zahoor Ali (deceased), so that he could marry her and blinded by his love she had injured her husband by firing a shot at him from his own licensed gun., that she had thereby committed a mistake and requested for pardon, War Ali (P. W. 16) a son of Zahoor Ali (deceased) and Muhammad Khan (given up) his brother, had also arrived in the meanwhile and this extra judicial confession was made by Mst. Alam Khatoon appellant in their presence.
4. Zahoor Ali (deceased) succumbed to this gunshot there and then and leaving Zafar Ali P. W. And Muhammad Khan (given up) at the spot Gohar Ali P. W. Proceeded to police station, but on reaching his village Ahdi Kot he came to know that the police was present there and contacting Muhammad Jamil, Sub-Inspector (P. W. 17) reported the matter to him at 5-00 p.m. The same evening vide his statement Exh. P. A. Which was forwarded to Police Station Nurpur for the registration of this case. Exh. P. A./1 is the formal first information report. The Sub-Inspector then proceeded to the spot and reaching there at 5-30 p.m. Secured blood-stained earth and a crime empty (P. 1) from there which were made into separate sealed parcels vide Exhs. P. B. And P. C.
Respectively. Muhammad Khan (given up P. W.) a brother of Zahoor Ali (deceased) produced before him the shot gun (P. 2) which was also sealed into a parcel vide Exh. P. D. A pair of shoes (P.
3/1-2) and blood--stained charpai (P. 4) under which it was lying were taken into possession vide Exhs. P. E. And P. F. He then attended to the dead body and after the necessary inquest vide Exh. P. K.
Despatched it to the mortuary along with injury statement Exh. P. L. Under the escort of Foot Constables Muhammad Sharif (P. W. 4) and Muhammad Chiragh (P. W. 5) at 9-00 p.m. The same evening. He then recorded the statements of the prosecution witnesses who were present there and took Mst. Alam Khatoon appellant into custody on the same evening, while Haq Nawaz appellant was arrested on the Ist of August 1968. All the sealed parcels were also deposited in the malkhana of the police station with Shahzada Khan, A. S. I. (P. W. 3), on that day, who despatched the two parcels con--taining the crime empty (P. 1) and shot-gun (P.2) to the Forensic Science Laboratory, Lahore and the third containing blood-stained earth to the Chemical Examiner, Lahore through Foot Constable Muhammad Sharif (P. W. 4). The report of the Chemical Examiner Exh. P. Q.
Revealed that the earth was stained with blood, but due to disintegration the Serologist could not trace out its origin. His report is Exh. P. O. In this respect.
According to Muhammad Sarwar (P. W. 11), Firearms Expert the crime empty (P. 1) had been fired from shot-gun (P, Z) vide his report Exh. P. R.
Sheikh Noor Muhammad Draftsman (P. W. 2) prepared the site plan Exh. P. M. With its duplicate Exh.
P. M. / 1 and putting his notes in red ink on the same the Sub-Inspector signed it in token of its correctness. As a result of this investigation, the Sub-Inspector Muhammad Jamil submitted the challan on the 14th August 1968 under section 302, P. P. C. Against lest. Alam Khatoon and under section 302 read with section 109 of Pakistan Penal Code against Haq Nawaz for abetting this offence.
5. Two and a half months later Gohar Eli (P. W. 14) submitted two applications to the higher police authorities copies (Exhs. P. T. And P. U.) expressing dissatisfaction on the result of s the investigation and prayed for a fresh investigation of the case, which of course was not allowed. He ultimately got a complaint (Exh. P. Z.) instituted through his nephew Haji Sher Muhammad (P. W. 13), which according to the commitment order was, however, not pressed as the witnesses named by him had already been examined by the Magistrate as Court witnesses during the enquiry held by him in connection with the challan put in by the police against the two appellants.
6. The substance of the two applications was that Haq Nawaz appellant had not only abetted this murder by Mst. Alain Khatoon, but was also actually present in the house of Zahoor Ali. (deceased) at the time of this occurrence. This assertion was further supplemented in the complaint adding that he was seen escaping through a side window by Muhammad Feroze (P. W. 9) and Abdul Hamid (P. W. 10) just after the report of the gunshot and had later made an extra judicial confession about his personal implication in this crime before Sher Bahadur (P. W. 12) and Bakhtawar (P. W. 13) during the following night. Gohar, Ali P, W. Moved the ilaqa Magistrate by an application under section 540, Cr. P. C. To summon the above-named persons as witnesses during the enquiry as well. Haq Nawaz appellant was challaned under section 302/109, P. P. C. But in view of this supplementary evidence he had drawn out a charge under section 302/34, P. P. C. Against both the appellants including Haq Nawaz appellant indicating his physical participation in this offence and not under section 302/109, P. P. C. For mere abetment, and committed both of them to Sessions for their trial on the said charges.
7. During this enquiry Dr. Rashid Ahmad Akhtar, who had held autopsy on the dead body of Zahoor Ali (deceased) on 29th July 1968, at 8-00 a. m. Was examined as (P. W. 1) and stated that he found the following injuries over it:-
(1) A lacerated firearm wound of entrance 1-- ' x 1' on the outer side of middle of chest 2--' below and outer side of right nipple. The edges were blackened, scortech, and abraded, direction from right to left downward inwards and so the left underlying 4, 5, 6 and 7th ribs were fractured.
(2) Six rounded lacerated firearms wounds of exit -- ' x --" each on the following places:-
(1) On the middle 2' above the lower end of sternum with abrasion around.
(ii) On the middle of inner side of front of right chess --' left to injury No. 1.3' above to inner side of the left nipple.
(iii) Inner side of middle of left chest 1-- ' sinner and right to the left nipple.
(iv) Left side of upper part of chest 2-- left to the left nipple
(v) On the inner side of upper part of left chest 2/8' outs and left to injury No. 4.
(vi) On the middle and inner side of left arm and middle and outer side of left arm both communicating with each other.
On dissection he found 4 to 7 ribs on the right side fractured in the middle, plenty of dark brown blood in both right and left pleural cavities and had multiple openings on the lower part, right lung crushed from the lower part, pericardium crushed and full of dark brown blood, right side of heart com--pletely crushed, peritoneum full of dark blood, diaphragm crushed on right side above the right lobe of liver, stomach moderately filled with about 10 ounces of digested food material, and right lobe of liver completely crushed. Death in his opinion was due to injuries to heart, lungs and liver leading to heart failure, haemorrhage and shock as a result of injury No. 1, which was caused by gunshot and was sufficient in the ordinary course of nature to cause death. Probable time that elapsed between injury and death was immediate and between death and post-mortem within twenty-four hours.
The evidence of this witness was transferred to the record of the Sessions trial under section 509, Cr. P. C. To prove that the death of Zahoor Ali (deceased) was the result -of violence which is not being disputed by the appellants.
8. In addition to this medical evidence the prosecution examined Habib Ullah (P. W. 6) Haji Sher Muhammad (P. W. 15) about the above detailed recoveries, Muhammad Azim (P. W. 8) in respect of the conspiracy between the two appellants for this murder, Muhammad Feroze (P. W. 9) and Abdul Hamid (P. W. 10) about the escape of Haq Nawaz appellant from the house of the deceased just after the report of the gunshot, Sher Behadur (P. W. 12) and Bakhtawar (P. W. 13) about the extra judicial confession of Haq Nawaz appellant that he had murdered Zahoor Ali (deceased) at the instance of Mst. Alam Khatoon appellant, Gohar Ali (P. W. 14) andZafar Ali (P. W. 16) with reference to the extra judicial confession of Mst. Alam Khatoon appellant that she had got Zahoor Ali (deceased) murdered by her paramour Haq Nawaz on account of their love affairs.
9. The two appellants, had, however, denied these allegations averring that they had been implicated in this case on account of enmity. Mst. Alam Khatoon added that the complainant party wanted to deprive her of her inheritance in the property of her late husband.
10. Learned trial Judge accepting the prosecution evidence as true and corn account of the occurrence and the subsequent developments implicating the two appellants in this case convicted each of them under section 302/34, P. P. C. As stated above.
This finding has been assailed as extremely erroneous and ill-founded due to the unscrupulous attempt of the com--plainant party to improve upon its original case resulting in three inconsistent versions which did not permit of any credence in the testimony of these witnesses who were interested in the pro--secution of the case on account of their close relationship with the deemed arid introduced at a belated stage after being imported from distant village.
12. On being taken through the record I am inclined to agree with these contentions of the learned counsel for the appellants. It would appear from the above narration that there was no direct evidence of this murder and the original version as reported to the police that Mst. Alam Khatoon appellant at the behest of her paramour, Haq Nawaz appellant had herself shot her husband dead to remove him from their way was solely based on her own confession in the presence of her father-in-law Gohar Ali (P. W. 14), her step-son Zafar Ali (P. W. 16) and her brother-in-law (husband's brother) Muhammad Khan (not produced) as also the incriminating recoveries from the spot. Haq Nawaz appellant was accordingly challaned only for abetment of this offence along with Mst. Alam Khatoon as the actual murderer of Zahoor Ali (deceased). The first information report lodged by Gohar Ali P. W. Was read over to him and admitting the same to be correct he hart thumb-marked it in token thereof. Its copy must have been delivered to him immediately on completion of this report in accordance with the Police Rules. The Circle Officer of the rank of Inspector of Police then arrived at the spot and verified the investigation held on these lines in the presence of the com--plainant party but they expressed no misgivings about it at that time. Two and a half months later they changed their mind and introduced the personal presence of Haq Nawaz appellant at the spot at the time of this occurrence, to show that he was equally responsible for this murder as would appear from the two applications submitted to the higher Police officials (copy Exhs. P. T. And P. U.), but even these two documents which were apparently drawn out after prolonged deliberations were absolutely silent about Haq Nawaz appellant having been seen by any one of the, prosecution witnesses escaping from the, spot just after the report of the fatal shot or his alleged extra judicial confession before any of them. As a matter of fact neither the names of Muhammad Feroze or Abdul Hamid P. Ws. In respect of the first allegation regarding his escape from the spot nor that of Sher Bahadur and Bakhtawar P. Ws. About his confession, found any mention in these applications praying for a reinvestigation of the case. It was admitted in these very applications that they had come to know from the very first day that the Investigating Officer in hic shabby attempt to save Haq Nawaz appellant under the influence of respectables of the Ilaqa had suppressed some material facts but there was no explanation why they had slept over it for full two and a half months. They had even withheld these incriminating factors while submitting these applications to higher police officials. These allegations about Haq Nawaz appellant had in fact seen the light of the day through the complains Exh. P. Z. Filed in the Court as late as 26th November 1968, i.e. Four months after the occurrence. Even according t:, this complaint the presence of Haq Nawaz appellant in the house of the deceased at the time of the occurrence Wag the only charge against him corroborated of course by his extra judicial confession before Sher Bahadur and Bakhtawar P. Ws. But at the trial yet another improve--ment was made upon these two versions which being inconsis--tent and contradictory with others was introduced by Gohar Ali appellant, the informant, in the extra judicial confession of Mst. Alam Khatoon appellant herself by putting the following words in her mouth:-- "I and Haq Nawaz appellant have done it (the murder of Zahoor Ali deceased). I have committed a blunder, excuse me, I took out the shot-gun and gave it to Haq Nawaz who fired the shot."
The role of Haq Nawaz was thereby changed from his bare pre--sence at the time of this occurrence as mentioned in the first information report the two applications (Exhs. P. T. And P. U.) and the complaint Exh. P. Z. To that of the actual murderer in place of Mst. Alam Khatoon appellant.
This substitution had thereby absolved Mst. Alam Khatoon of the initial allegation of the firing of the fatal shot herself on her husband. Gohar Ali P. W. Had further added that as he entered the kotha of his son Zahoor Ali (deceased) on hearing the report of the shot fired at him he saw his licensed gun (P. 2) lying by the side of northern window while Mst. Alam Khatoon was standing empty-handed towards the north-east of the charpai in a perturbed state of mind. Muhammad Feroze (P. W. 9), Abdul Hamid (P. W. 10) and Zafar Ali (P. W. 1, 6) had also towed the same line about it. The original version as reported to the Police in the first information report Exh. P. A. Was thus completely belied by the complainant himself as also by the other relevant prosecution witnesses not only in respect of the author of the fatal shot but the handling of the gun later as well. These variations and improvements could no be treated as bare embroidery in the case but bad resulted in contradictions in fact negation of different roles attributed to both the appellants which had so much impaired the credibility of all the prosecution witnesses that it would be unsafe to rely on any part of their statements and "I sufficient to throw out the entire case without going into the other inconsistencies, embellishment, and discrepancies in which they had indulged during their cross- examination at tae trial it would, therefore, be sheer waste of time to categorise the same.
13. The remaining evidence about the conspiracy between Mst. Alam Khatoon and Haq Nawaz appellants for the murder of Zahoor All and that of the relevant recoveries also suffered from the same infirmities. Muhammad Azam (P. W. 8) who claimed to have seen them closeted together in the bush--fields and overheard them talking about it was neither mentioned in those belated applications (copies Exhs: P. T. And P. U.) nor in the detailed complaint filed still later after due deliberations. He was a partner with Zahoor Ali (deceased) in his flour-mill and could not be favourably disposed to Haq Nawaz appellant in view of the suggestions made to him during his cross-examination most of which were not refuted by him.
14. Habib Ullah (P. W. 6) and Haji Sher Muhammad (P. W. 15) the witnesses of the recovery, Muhammad Feroze (P. W. 9) and Abdul Hamid, the witnesses of extra-judicial confession of Mst.
Alam Khatoon, belong to distant villages as stated above and had no genuine business to be present m the vicinity of the crime at the time of this occurrence. They had been introduced at a very belated stage of the case after being imported from distant villages of over 4/5 miles for this pur--pose mainly on account of their relationship. Most of them were originally examined as prosecution witnesses in the I complaint case and had omitted to mention in their statements all these incriminating factors which they later sponsored in their statements as prosecution witnesses with crude improve--ments upon their earlier statements with which they were duly confronted at the trial, their evidence had therefore to be discarded merely on account of these embellishments. Learned trial Judge does not appear to have scrutinised their evidence on the basis of these established principles of administration of justice and having been swayed away with the solitary fact that some of the P. Ws. Were related to both the parties had accepted their deposition as gospel truth without applying these touch stones to test their veracity which to my mind do not inspire confidence at all as discussed above by me. The evidence of the recovery of the empty cartridge (P. 1) or the gun (P. 2) even coupled with the report of the Firearm Expert in the positive could not strength the pro ration case in this back--ground.
15. As a result t case against the two appellants was replete with grave doubts the benefit of which cannot be denied to the two appellants. I have, therefore, to accept this appeal and setting aside their conviction and sentence direct that they shall be set at liberty forthwith if not required in any case.